Charge (DAC No) MDA section Offence Imprisonmentsentence

047817/2012 s 7 punishable unders 33(1)

Importation of 139.3g ofmethamphetamine, a Class Acontrolled drug

12 years

018135/2013 s 8(a) punishableunder s 33(1)

Possession of 6.47g ofmethamphetamine, a Class Acontrolled drug

2 years

018138/2013 s 8(a) punishableunder s 33(1)

Possession of not less than 30tablets of nimetazepam, a Class Ccontrolled drug

6 months

018140/2013 s 8(b)(ii) punishableunder s 33A(1)

Consumption of methamphetamine,a specified drug

5 years

Mohamed Shouffee bin Adam v Public Prosecutor [2014] SGHC 34

Case Number : Magistrate's Appeal No 184 of 2013

Decision Date : 26 February 2014

Tribunal/Court : High Court

Coram : Sundaresh Menon CJ

Counsel Name(s) : The appellant in person; Prem Raj Prabakaran and Alan Hu (Attorney-General'sChambers) for the respondent; Rajaram Vikram Raja (Drew & Napier LLC) asamicus curiae.

Parties : Mohamed Shouffee bin Adam — Public Prosecutor

Criminal Procedure and Sentencing – Sentencing

26 February 2014 Judgment reserved.

Sundaresh Menon CJ:

Introduction

1 This is an appeal brought against the decision of the District Judge in PP v Mohamed Shouffeebin Adam [2013] SGDC 288 (“the GD”). The appellant pleaded guilty to four charges under the Misuseof Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and was sentenced to a total of 17 years’imprisonment by the District Judge. Eight other charges were taken into consideration. He appealedagainst his sentence on the ground that it was manifestly excessive.

2 The charges that were proceeded with and their associated sentences are summarised below:

3 A further eight charges were taken into consideration, summarised as follows:

Charge

(DAC No)

MDA section Offence

018131/2013 s 7 punishable unders 33(1)

Importation of amphetamine, a Class A controlled drug

018132/2013 s 7 punishable unders 33(1)

Importation of not less than 4949 tablets of nimetazepan,a Class C controlled drug

018133/2013 s 7 punishable unders 33(1)

Importation of 51 tablets containing 3.68g of α-methyl-3,4-(methylenedioxy) phenethylamine, a Class A controlleddrug

018134/2013 s 8(a) punishableunder s 33(1)

Possession of 0.01g of diamorphine, a Class A controlleddrug

018136/2013 s 8(a) punishableunder s 33(1)

Possession of amphetamine, a Class A controlled drug

018137/2013 s 8(a) punishableunder s 33(1)

Possession of 1 tablet of nimetazepam, a Class Ccontrolled drug

018139/2013 s 8(a) punishableunder s 33(1)

Possession of 0.01g of diamorphine, a Class A controlleddrug

018140/2013 s 9 punishable unders 33

Possession of utensils for drug taking

4 When the matter was first heard before me on 21 November 2013, I indicated that havingconsidered the arguments and the GD, I was satisfied that the individual sentences imposed inrespect of each of the charges were not manifestly excessive. They were within the range ofsentences imposed for such offences and the District Judge had properly considered all the relevantfactors. However, I noticed that the District Judge had chosen the two heaviest sentences to runconsecutively. These were sentences of terms of imprisonment for 12 and 5 years for importation andconsumption of methamphetamine respectively. I was not satisfied that the choice of these twosentences had been adequately explained. I therefore adjourned the matter and invited the DeputyPublic Prosecutor, Mr Prem Raj Prabhakaran (“the DPP”), to prepare further submissions as to theprinciples that should guide a sentencing judge in the exercise of his discretion when choosing whichsentences ought to run consecutively and which concurrently. I also appointed Mr Rajaram VikramRaja from the Supreme Court’s Young Amicus Curiae panel to assist me with submissions on thisimportant issue.

5 The matter came before me again on 23 January 2014. Having considered the thorough andhelpful further submissions put forward by the DPP as well as by the amicus curiae as to the relevantprinciples, I am satisfied that the District Judge erred and that the total sentence was manifestlyexcessive for reasons that follow.

6 Accordingly, I allow the appeal and order the sentences for DAC 47817/2012 (12 years) andDAC 18138/2013 (six months) to run consecutively while the sentences for the remaining two chargesare to run concurrently. In the result, the appellant is to serve an aggregate imprisonment sentenceof 12 years and six months.

Background facts

Background facts

7 The appellant was 51 years of age at the time he was convicted on 12 August 2013. Heworked as a freelance marine surveyor. On 24 December 2012 at about 7.15pm, the appellant wasdriving through the Woodlands Checkpoint into Singapore when he was stopped and his car wassearched. Packets of crystalline substance were found in the front passenger seat dashboard and inthe car boot. The appellant was arrested and the packets were seized and sent for analysis. Twobottles of urine samples were taken and these too were sent for analysis. The packets weresubsequently found to contain methamphetamine and amphetamine while the urine samples werefound to contain traces of methamphetamine.

8 On 25 December 2012 at about 3am, some hours after his arrest, the appellant was escorted tohis residence in Pasir Ris Drive by officers from the Central Narcotic Bureau (“CNB”). The residencewas searched, and beside a bed, a briefcase was found containing 30 tablets believed to be Erimin 5.

9 The appellant admitted to the investigating officers that he had been transporting drugs intoSingapore since late August or early September 2012. The drugs were “Ice”, the street name formethamphetamine, and Erimin 5 tablets which contained nimetazepam. On occasion, he alsotransported Ecstasy tablets. The appellant admitted that he had made four trips previously and hadbeen paid about $2,000 on each occasion at a rate of $1,000 for every 250g of “Ice” and $2 for eachslab of Erimin 5 tablets. His contact was a Malaysian who he referred to as “Ah Bee”.

10 The appellant said that on 24 December 2012 at about 11am, “Ah Bee” telephoned him andasked him to go to Johor Bahru to pick up a quantity of drugs and to bring these into Singapore. Heleft for Malaysia on the same day, but before doing so he consumed some Ice in his residence. Shortlythereafter, at about 2pm, the appellant, in the company of a friend, drove his car through theWoodlands Checkpoint to Taman Sentosa in Johor Bahru. He parked his car there and left the keyinside. Some hours later, “Ah Bee” contacted him again and told him he could collect the car. Theappellant did so and then drove back to Singapore with his friend. He had been told to contact “AhBee” after he had crossed the Woodlands Checkpoint but he was arrested at the Checkpoint when re-entering Singapore.

11 The appellant had a number of antecedents. He had five previous convictions dating back to hisfirst conviction for theft in 1987 for which he was sentenced to a fine of $1,500. In 1990, there werethree further convictions: for theft, for theft of motor vehicles or component parts, and for fraudulentpossession of property. He was jailed a total of 15 months. In 2000 he was convicted again, forconsumption of cannabinol derivatives, for which he was sentenced to a year in prison. Aside fromthese, the appellant had also been the subject of a total of nine drug rehabilitation orders between1989 and 2001: five of these were drug supervision orders for a period of 24 months each; and fourwere orders for committal to a drug rehabilitation centre for varying lengths of time. There were nofurther convictions or drug rehabilitation orders after 2001.

12 Although the appellant had a substantial number of previous convictions and a long history ofdrug consumption in the period between 1987 and 2001, his criminal record warranted closer scrutinyas it revealed three distinct phases or periods:

(a) The first ran from the mid-1980s to 2001. In this period, there were four property-relatedconvictions between 1987 and 1990; and a number of drug consumption offences between 1989and 2001. Aside from some time spent in prison, he was also frequently in and out of drugrehabilitation. He did not have any prior convictions for importation or trafficking of drugs.

(b) The second period of about nine years ran from 2001 to 2010 during which he did not re-

offend. Nor did he relapse into drug taking. At least, that is what the record shows and he isentitled to the presumption that he was free of any criminal activity during this substantialperiod.

(c) The third period ran from 2010, when, by his own admission, he began smoking Ice. Hisconsumption seemed to have increased and in the period of three to six months before he wasarrested he was smoking it two to three times a day. In August or September 2012, as I havesaid, he became a drug courier importing drugs. This was a more serious offence. He was arresteda few months later in December 2012.

The decision below

13 The District Judge first reviewed the statement of facts and the appellant’s antecedents whichI have set out above. She then considered the appellant’s plea in mitigation. This was to the effectthat:

(a) he had no previous convictions for importation, trafficking or possession;

(b) he had committed the offences in order to raise money to purchase a flat for himself andhis family;

(c) he was 51 years old, remorseful and unlikely to re-offend; and

(d) he had pleaded guilty at the earliest chance.

14 The Prosecution on the other hand had placed reliance on the appellant having dealt in asubstantial quantity of drugs and on his drug antecedents. Moreover, as he was over 50 years oldand could not be caned, the Prosecution urged the District Judge to impose a longer period ofimprisonment. There were also eight other charges to be taken into consideration. The Prosecutionrelied on two unreported cases, PP v Hema Nathan Pachiappan (DAC 41669/2012) and PP v Siti Najihabte Sagri (DAC 5920/2012), both cases on importation of methamphetamine for which the offendershad been sentenced to six and 12 years’ imprisonment respectively, and urged the District Judge topass a sentence of not less than 12 years’ imprisonment.

15 The District Judge said that she did not see any merit in the appellant’s plea in mitigation. Givenhis age and his long string of drug antecedents, he could not be said to be naïve or to have beenmisled. His descent into drug importation in order to raise money to buy a flat for his family was, inthe District Judge’s words, an “extremely lame excuse.” He had been caught red-handed, whichmilitated against any value being placed on his early plea of guilt. Further, he had admitted to beingpart of a syndicate as evidenced by his standing arrangement with “Ah Bee” and his admission that hehad successfully imported drugs into Singapore on four previous occasions.

16 The District Judge considered that the primary sentencing considerations in drug offences weredeterrence and prevention and had regard to the two cases cited by the Prosecution. The DistrictJudge noted that in those cases the offenders had no prior convictions. On that basis, it wasconsidered that the appellant’s sentence should not be lighter than that meted out in the latter case(see [14] above). The District Judge accordingly imposed the individual sentences as I have set outabove.

17 The District Judge then considered which of them were to run consecutively and she reasonedas follows at [19] of the GD:

Pursuant to section 307(1) of the Criminal Procedure Code (Revised 2012 Edition), the sentencesfor at least 2 of the offences must run consecutively. Hence, I deliberated on which 2 sentencesought to run consecutively. As elaborated in preceding paragraphs, there are a number ofaggravating factors, in particular, the accused’s speedy relapse into drugs despite numerous DRCadmissions, the accused’s pivotal role in importing the drugs and thereby making them available toabusers in Singapore and the substantial quantities involved. I also considered that theimportation and the consumption offences were distinct offences, whereas the other offences ofpossession of the drugs were part of and connected to the importation transaction. After carefulconsideration, I decided that it was appropriate to order the sentences in DAC 47817/2012 andDAC 18140/2013 to run consecutively. With this in mind, I so ordered. The total sentence was 17years’ imprisonment. No caning was imposed on account of his age.

18 In sum, the District Judge gave four reasons for running the two heaviest sentencesconsecutively:

(a) the appellant’s “speedy relapse into drugs” despite numerous stints in rehabilitation;

(b) his “pivotal role in importing the drugs and thereby making them available to abusers inSingapore”;

(c) the fact that the appellant had imported substantial quantities of different drugs; and

(d) the fact that the importation and the consumption offences were distinct offences,whereas the other offences of possession of the drugs were part of and connected to theimportation transaction.

My decision

19 I should state at the outset that sentencing is a matter which is within the primary purview ofthe trial court and appellate intervention will only be warranted in limited circumstances, such aswhere it can be shown that the sentence is wrong in principle or that the sentencing judge has erredin failing to correctly appreciate the material that is before her: see Public Prosecutor v UI [2008] 4SLR(R) 500 at [12]. The issue that arises in this appeal concerns the question of whether the DistrictJudge had erred in exercising her discretion as to which of the sentences she imposed on theappellant were to run consecutively and which concurrently.

The applicable principles

The obligation to impose consecutive sentences

20 As this is a point of importance, it is appropriate to begin by setting out the principles thatinform how a sentencing judge who has imposed multiple sentences on an offender ought to approachthe question of which among them should run consecutively.

21 In certain situations, a sentencing judge is obliged to impose consecutive sentences.Section 307(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) states:

Consecutive sentences in certain cases

307.—(1) Subject to subsection (2), if at one trial a person is convicted and sentenced toimprisonment for at least 3 distinct offences, the court before which he is convicted must order

the sentences for at least 2 of those offences to run consecutively.

22 However, s 307(1) only mandates that there be no fewer than two consecutive sentences ofimprisonment where the accused has been convicted and so sentenced for at least three distinctoffences. As such, the section does not apply where the Prosecution agrees to proceed on no morethan two charges and not to proceed with the remaining charges but to have them taken intoconsideration for the purpose of sentencing.

23 The words “distinct offences” are not defined in s 307(1), but s 132(1) of the CPC states:

Separate charges for distinct offences

132.—(1) For every distinct offence of which any person is accused, there must be a separatecharge and, subject to subsection (2), every charge must be tried separately.

24 It follows from this that as long as the charges have been correctly framed, each separatecharge will have been brought in respect of a “distinct offence” for the purposes of s 307(1). In thiscase, the Prosecution proceeded with four charges to which the appellant pleaded guilty and theDistrict Judge was therefore bound by s 307(1) to impose at least two sentences consecutively.

25 However, s 307(1) is silent on which of the sentences are to run consecutively. Nor does thesection or the CPC for that matter provide any guidance on this, though certain principles havedeveloped through case-law. At the outset, it may be noted that the sentencing judge is vested withconsiderable discretion, but this must be exercised judiciously and with regard to two principles inparticular, namely, the one-transaction rule and the totality principle, as well as a number of ancillaryprinciples. I elaborate on these below. For the avoidance of doubt, there is no presumption or rulethat the two most severe sentences should ordinarily be selected to run consecutively. Nor is it a rulethat the most severe individual sentence of imprisonment must be selected as one of the sentencesto run consecutively, so long as the aggregate of the sentences that are so selected exceeds thelongest individual sentence. I discuss this further at [77] below.

The individual sentences

26 The sentencing judge must begin by deciding on the appropriate individual sentences in respectof each charge or offence. In arriving at the individual sentences, the sentencing judge will generallyhave considered the relevant aggravating and mitigating factors that bear upon each discretesentence.

The one-transaction rule

27 Having decided on the appropriate sentence for each offence, it then falls on the sentencingjudge to consider which of the sentences should run consecutively. The first rule that the sentencingjudge should consider is what has been referred to as the one-transaction rule. This is not aninflexible or rigid rule but it serves as a filter to sieve out those sentences that ought not as a generalrule to be ordered to be run consecutively. The clearest statement of the principle may be found inthe High Court decision of Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 (“Law Aik Meng”),where V K Rajah J (as he then was) said as follows at [52]:

The one-transaction rule requires that where two or more offences are committed in the courseof a single transaction, all sentences in respect of those offences should be concurrent ratherthan consecutive: Maideen Pillai v PP [1995] 3 SLR(R) 706; Kanagasuntharam v PP [1991] 2

SLR(R) 874 (“Kanagasuntharam”). Prof Andrew Ashworth in Sentencing and Criminal Justice[Cambridge University Press, 2005, 4th Ed] at p 245 interpreted the raison d’être for the “singletransaction” principle in terms of proximity in time and proximity in type of offence. Such aninterpretation was also adopted by Dr D A Thomas in Principles of Sentencing (Heinemann, 2ndEd, 1979) (“Principles of Sentencing”), who opined at p 54:

The concept of ‘single transaction’ may be held to cover a sequence of offences involving arepetition of the same behaviour towards the same victim ... provided the offences arecommitted within a relatively short space of time.

[emphasis in original]

28 In Law Aik Meng at [52] the touchstones identified were whether there was proximity of timeand proximity in the type of offence. The Malaysian Court of Appeal has developed this into fourelements: proximity of time, proximity of place, continuity of action and continuity of purpose ordesign: see Bachik bin Abdul Rahman v Public Prosecutor [2004] 2 MLJ 534 at [7].

29 Although Rajah J in Law Aik Meng interpreted the rationale for the rule in terms of proximity, inmy judgment, this is better understood as a preliminary enquiry to help ascertain whether or not thedistinct offences are to be seen as part of a single transaction.

30 The better articulation of the rationale for the rule is found in the principle that consecutivesentences are not appropriate if the various offences involve a “single invasion of the same legallyprotected interest” (see D A Thomas, Principles of Sentencing (Heinemann, 2nd Ed, 1979) (“Principlesof Sentencing”) at p 53):

The essence of the one-transaction rule appears to be that consecutive sentences areinappropriate when all the offences taken together constitute a single invasion of the samelegally protected interest. The principle applies where two or more offences arise from the samefacts — as when the same series of blows constitutes assault occasioning actual bodily harm andwilful ill treatment of a child, or malicious wounding and indecent assault — but the fact that thetwo offences are committed simultaneously or close together in time does not necessarily meanthat they amount to a single transaction. … [emphasis added]

31 On this formulation, the real basis of the one-transaction rule is unity of the violated interestthat underlies the various offences. Where multiple offences are found to be proximate as a matter offact but violate different legally protected interests, then they would not, at least as a general rule,be regarded as forming a single transaction. However, it should be said for the avoidance of doubtthat even if this offers a better rationale for the one-transaction rule, that does not make it a testwhich is to be rigidly applied. As will be evident from the analysis that is set out below, even where asentencing judge is able to identify that a set of offences violates different legally protectedinterests, it does not always or necessarily follow that those offences cannot be regarded as part ofthe same transaction.

32 But the main point I make here is that a straightforward application of the tests for proximity oftime and proximity of type of offence cannot be determinative of the question whether a series ofoffences are to taken by the law to be part of the same transaction so as not to warrant separatepunishment. The one-transaction rule is an evaluative rule that is directed towards the ultimateenquiry that a sentencing court is engaged in: whether an offender should be doubly punished foroffences that have been committed simultaneously or close together in time. This will often, if notinevitably, bring into play moral considerations and it would be impossible to resolve these solely by

reference to facts (such as proximity in time) which, in and of themselves, might be devoid of moralsignificance.

33 An illustration will help in making the point. Take the example of a date rapist who rapes hisunconscious victim and then makes off with her purse. Notwithstanding the proximity in time andplace in which these offences have been committed, it would be wrong to regard both as forming asingle transaction. It is quite evident that two separate interests, namely the right to bodily integrityand the right to property, have been implicated and warrant separate punishment.

34 However, it must not be thought that the proximity test is without utility. A lack of proximitywould generally rule out the operation of the one-transaction rule. Take the case of a serial burglarwho breaks into two homes, with the second break-in occurring three months after the first: thesetwo offences would quite evidently not form part of a single transaction.

35 Although helpful, the test of proximity has not been (and should not be) unthinkingly appliedand its utility is best appreciated as an indicator towards the question of whether in all thecircumstances the distinct offences should be treated as forming part of a single transaction orwhether in principle these call for multiple punishments. Thus, in Public Prosecutor v Lee Cheow LoongCharles [2008] 4 SLR(R) 961 (“Charles Lee”), the accused, who had been disqualified for driving, spedthrough a traffic crossing and hit and killed an elderly pedestrian before escaping the scene. He wascharged for three groups of offences: causing death by a rash act, driving while disqualified, andfailing to render assistance after a fatal accident. Chan Sek Keong CJ considered that the actions ofthe accused were not part of the same transaction but were distinct offences because each group ofoffences was serious and did not necessarily or inevitably flow from the others.

36 In Public Prosecutor v Firdaus bin Abdullah [2010] 3 SLR 225 (“Firdaus”), Chan CJ again rejectedthe rigid application of the proximity-based test. There, the accused had punched a child’s faceseveral times before lifting him off the ground and slamming him into the wall. He then continuedslapping the child on his back. This was the basis of one charge of voluntarily causing grievous hurt.The accused then removed the child’s shorts and abused him by grabbing, shaking and biting thechild’s penis and scrotum. This was the basis of another charge for ill-treatment of a child unders 5(1) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed). The two offences wereproximate in time and were arguably similar in nature. However, Chan CJ considered that the secondoffence was entirely independent of and causally unconnected from what had transpired until then.The accused had hit the child in the first instance because he had refused to stop crying. When thechild did stop crying after he had been slammed against the wall, the accused embarked on the finalsequence of offences (at [36]–[37] of Firdaus).

37 Clearly, the rule is easier to state than it is to apply in practice. In Firdaus, Chan CJ noted the“uncertain boundaries” of the one-transaction principle (at [31]). The foregoing discussiondemonstrates that the rule should in reality be seen as a set of guidelines and these are notdeterminative or comprehensive; nor should they be rigidly applied.

38 This point was usefully illustrated in Tan Kheng Chun Ray v Public Prosecutor [2012] 2 SLR 437(“Ray Tan”), a decision of our Court of Appeal. This was a case that concerned multiple drug charges.The two relevant charges were for importation of 14.99g of diamorphine found in the offender’s carwhen it was stopped at the Woodlands Checkpoint; and for importation of 1.12g ofmethamphetamine, also found in the offender’s car when it was stopped and searched at theCheckpoint. The former was found to have been imported for distribution while the latter was for theaccused person’s own consumption. There was undoubtedly proximity as a matter of fact, butseparate interests were implicated. The offence of importation for distribution addresses the interest

of others to be protected from harmful drugs; while the offence of possession for one’s ownconsumption implicates the interest of the one in possession in being protected from harming himself.Both charges were ordered to run consecutively but on appeal, the Court of Appeal disturbed thisholding and found that the one-transaction rule should apply. This was because a rigid application ofthe one-transaction rule by focusing solely on whether there was a diversity of interests that wereinvaded by the offences would have led on the facts of that case to the counterintuitive result thatthe appellant there would have been better off if he had imported the second quantity of drugs alsofor the purpose of trafficking, even though trafficking is a more egregious offence and he would havecaused even greater harm by trafficking in more drugs (see [17]).

39 This decision provides a salutary reminder that in applying the rule, the sentencing judge mustultimately consider whether in all the circumstances, this particular offender ought to be doublypunished. The tests that have developed to ascertain whether the multiple distinct offences ought tobe treated as forming a single transaction may have to yield to a different combination of sentencesbeing ordered to run consecutively if this is directed by other countervailing considerations. As thecourt noted in Ray Tan at [17]: “…the application of the one-transaction rule is also an exercise incommonsense. It also bears repeating that the application of this rule depends very much on theprecise facts and circumstances of the case at hand”.

40 The question whether the offences are part of a single transaction is an important one and itarises with particular frequency in drug offences which lend themselves very easily to a multiplicity ofcharges being brought: for consumption, possession, importation and even trafficking, or where theincident involves different drugs, or the same drug found in different places, or of the same mixture orpackage of substance containing two or more controlled drugs. While it may well be helpful to haveregard to such factors as proximity in time, proximity of purpose, proximity of location of the offences,continuity of design and unity (or diversity) of the protected interests, in the final analysis, theconsideration must be undertaken as a matter of common sense.

41 There may well be circumstances where a sentencing judge may order two sentences to runconsecutively even though they are in relation to offences that do form part of a single transaction.One instance of this is where the straightforward application of the one-transaction rule results in theoffender benefitting from the court’s failure to have regard to the enhanced culpability that isreflected in the multiplicity of the offences that have been committed. The point has been noted forinstance in Richard G Fox & Arie Freiberg, Sentencing: State and Federal Law in Victoria (OxfordUniversity Press, 2nd Ed, 1999) (at p 721) that:

Courts often fear that concurrent sentences are tantamount to an inducement to criminalconduct inasmuch as offenders may reason that, if caught, they are unlikely to suffer anymaterial extension of their imprisonment by virtue of the further offences.

42 The enquiry into whether there is an invasion of the same underlying interest looks at thingsfrom the perspective of the victim. But there is another way of approaching the ultimate question ofhow the offender should be punished and that is to view it from the perspective of the accused. Onthis premise, the imposition of consecutive sentences would be appropriate if the second (or othersubsequent) offence reflects increased culpability on the accused’s part even where, as a technicalmatter, the multiple offences might form part of the same transaction. The Hong Kong Court of Appealdecision of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 is instructive on this point (at [23]):

The emphasis therefore should be on a reflection in the sentence of true culpability disclosed bythe offences of which the accused has been convicted. This is an approach which this Court hasconsistently adopted in recent times, for example in HKSAR v Kwok Shiu To [2006] 2 HKLRD 272

and HKSAR v Iu Wai Shun [2008] 1 HKC 79. It is likely to be a more effective approach inreflecting an offender’s overall culpability than one which becomes overly concerned with the onetransaction rule, although in the case of more than one offence, the court must guard carefullyagainst punishing twice for the same act. If the second offence which takes place in the courseof the suggested single episode adds to the culpability of the first offence, it will normally followthat the sentence for the second offence will run wholly or partially consecutive to that for thefirst; to what extent, if at all, will depend upon an assessment of the totality appropriate for theconduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to theindividual circumstances of the case and the offender. [emphasis added]

43 This is also reflected in the decision of the English Court of Appeal in R v Greaves (ClaudeClifford) [2011] 1 Cr App R (S) 8, where the court observed (at 84):

Where the offenders are one and the same, if the conduct involved in the Proceeds of Crime Actoffence in reality adds nothing to the culpability of the conduct involved in [the] primary offence,there should be no additional penalty. A person should not be punished twice for the sameconduct. …

44 In my judgment, the decisions of Chan CJ in Charles Lee and in Firdaus (see [35] and [36]above) might also be explained on this basis since it was evident that the culpability of the accusedpersons in those cases was enhanced by the multiplicity of offences.

45 Aside from this, there are other instances when it would be appropriate for the sentencingjudge to impose consecutive sentences notwithstanding that to do so would entail deviating from theone-transaction rule. This would be so, for instance, where:

(a) it is necessary to do so in order to give sufficient weight to the interest of deterrence soas to discourage behaviour of the sort in question: see for instance ADF v Public Prosecutor andanother appeal [2010] 1 SLR 874 (“ADF”) at [143]; or

(b) the imposition of consecutive sentences would be in keeping with the gravity of theoffences: see Law Aik Meng at [56].

46 However, whenever a sentencing judge considers it appropriate to depart from the one-transaction rule it would be appropriate to state the reasons or considerations that prompt such acourse. This would displace any prospect of it being construed as a decision made in ignorance of therule and it would also afford an appellate court the opportunity to assess the appropriateness of thesentence should this arise.

The totality principle

47 The second principle is the totality principle. This is a principle of limitation and is amanifestation of the requirement of proportionality that runs through the gamut of sentencingdecisions. The notion of proportionate punishment is one of considerable vintage and features in mostarticulations of justice. In the ancient texts, one sees the demand for equivalence between offenceand punishment expressed in terms of “eye for eye, tooth for tooth”. Chapter 20 of the Magna Carta(dating back to 1215 AD) states that “[a] free man shall not be amerced for a trivial offence exceptin accordance with the degree of the offence”. The Bill of Rights, passed in 1689, states that“excessive bail ought not to be required, nor excessive fines imposed”. The Roman philosopher Cicerowrote: “[t]ake care that the punishment does not exceed the guilt” (De Officio Bk 1, ch 25, s 89, alsocited in the High Court of Australia case Veen v The Queen (1979) 143 CLR 458 at 494).

48 In Law Aik Meng, Rajah J observed (at [60]):

It is axiomatic that the totality principle, not dissimilarly from its one-transaction counterpart,functions not as an inflexible rule, but rather as a helpful guideline to remind the court that thecorrelation of the sentence to the gravity of the offender’s conduct and offences is of criticalimportance. In short, sentences must be restrained by the principle of proportionality. …[emphasis added]

49 This is echoed in Tan Yock Lin, Criminal Procedure vol 3 (LexisNexis, 2010) at para [4101.1]:

…the totality principle is a salutary reminder to ensure proportionality in a global sense, especiallywith respect to overlapping offences…

50 Most recently, Chao Hick Tin JA in Public Prosecutor v Saiful Rizam bin Assim and other appeals[2014] SGHC 12 at [29] observed pithily that “an offender should only receive a punishment that is inline with what the offence he had committed deserves, and no more.”

51 As with the one-transaction rule, the totality principle is not an invariable rule and “it shouldnot be rigidly and blindly applied to all cases” (Law Aik Meng at [58]).

52 Prof D A Thomas (“Prof Thomas”) formulates the totality principle in Principles of Sentencingthus (at p 56):

The effect of the totality principle is to require a sentencer who has passed a serious ofsentences … to review the aggregate sentence and consider whether the aggregate is ‘just andappropriate’. …

53 He goes on to explain (at pp 57–8) that:

[T]he principle has two limbs. A cumulative sentence may offend the totality principle if theaggregate sentence is substantially above the normal level of sentences for the most serious ofthe individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’not in keeping with his record and prospects. …

54 The first limb of the totality principle examines whether “the aggregate sentence is substantiallyabove the normal level of sentences for the most serious of the individual offences committed”[emphasis added]. This calls for a comparison between the total sentence on the one hand and ayardstick on the other hand (see Law Aik Meng at [57]). This appears also to have been the approachof the Court of Appeal in V Murugesan v Public Prosecutor [2006] 1 SLR(R) 388 at [37].

55 However, in Navaseelan Balasingam v Public Prosecutor [2007] 1 SLR (R) 767 at [26]–[28], TayYong Kwong J compared the combined term of the sentences to be run consecutively with themaximum permitted sentence for the most serious individual offence. In doing so, Tay J was followingan observation of the Court of Appeal in Kanagasuntharam v Public Prosecutor [1991] 2 SLR(R) 874at [14].

56 In the course of the arguments, both the DPP and the amicus curiae accepted that the correctformulation ought to be the normal level of sentences imposed for the most serious of the offencesrather than the maximum permissible sentence. If the overriding concern of the rule is to ensureproportionality then it would be incongruous to take as a yardstick for comparison a maximumsentence which would usually be reserved for the most serious offenders and which may have no

correlation to the actual circumstances in which the offender who is before the court committed theoffence in question. The whole essence of sentencing is to have regard to the actual circumstancesthat are presented to the court. It therefore seems to me, at least on a provisional basis and pendingan occasion where it may be necessary to resolve the issue with the benefit of full arguments, thatthis is correct.

57 The second limb considers whether the effect of the sentence on the offender is crushing andnot in keeping with his past record and his future prospects.

58 The totality principle is a consideration that is applied at the end of the sentencing process. InPrinciples of Sentencing, Prof Thomas suggests that the principle requires the court to take a “lastlook” at all the facts and circumstances and assess whether the sentence looks wrong (see p 56).

59 If so, consideration ought to be given to whether the aggregate sentence should be reduced.This may of course be done by re-assessing which of the appropriate sentences ought to runconsecutively (see p 57 of Principles of Sentencing). In addition the amicus curiae suggested, and itseemed to me that the DPP agreed with this, that it could also be done by re-calibrating the individualsentences so as to arrive at an appropriate aggregate sentence.

60 This appears to have been the basis of the decision of this court in Low Meng Chay v PublicProsecutor [1993] 1 SLR(R) 46. The offender in that case faced a total of 31 charges under s 73 ofthe Trade Marks Act (Cap 332, 1985 Rev Ed) and a total of 21 charges under s 73 of the Trade MarksAct (Cap 332, 1992 Rev Ed). He was fined various sums in respect of each of the charges but hecould not pay any of the fines. In default, he faced a total of 88 months and 23 days in jail.

61 On appeal, Yong Pung How CJ held that the fines were not excessive either individually or inaggregate. But because of the sheer number of charges, the imprisonment term in default of the fineoffended the totality principle. Yong CJ accordingly recalibrated the individual sentences: some weremade to run concurrently instead of consecutively, while for others, longer terms of imprisonmentwere imposed but made to run concurrently. In the aggregate the sentence was reduced to 33months’ imprisonment: at [14]–[15]. While this would no longer be possible in relation to defaultsentences – see s 319(b)(v) of the CPC, which directs that all sentences of imprisonment imposed indefault of payment of a fine must be run consecutively – the principle nonetheless remains applicable.

62 This was also the position in the Malaysian case of Mansor bin Meyon v Pendakwa Raya [2007]8 MLJ 706. There, the offender was convicted of three counts of raping his underage daughter andwas sentenced to 18 years’ imprisonment and eight strokes of the cane for each charge, all to runconsecutively, for a total of 54 years’ imprisonment. On appeal to the High Court (Muar), Jeffrey TanJ held that even though the individual imprisonment sentences were not excessive, the aggregatewas close to three times the maximum prison sentence for the most serious of the individual offencesand was also crushing given that this was a first offence and that he was already 49 years old: at[18]–[19]. In the result, each sentence was reduced to 12 years’ imprisonment, to run consecutively.

63 The power of the court to recalibrate the discrete sentences when these are ordered to runconsecutively arises from the common law principle of proportionality, to which I have alreadyreferred. It is unquestionably true that a sentencing judge must exercise his sentencing discretionwith due regard to considerations of proportionality when considering any given case. If this is validand applicable when sentencing a single offender to a single sentence of imprisonment, then I cannotsee how it can cease to be so when the sentencing judge is required in the exercise of his sentencingdiscretion to impose an aggregate sentence for a number of offences. In my judgment, such a rule iscompatible with and not excluded by ss 306 and 307(1) of the CPC. These sections contemplate that:

(a) when an accused person is convicted at one trial of two or more offences, the court mustsentence him to punishments that it is competent to impose (see s 306(1));

(b) the court generally has the discretion to decide whether these are to run consecutively orconcurrently (see s 306(2));

(c) but where the accused is convicted and sentenced to imprisonment at the same trial ofthree or more offences, the court must order at least two of those are to run consecutively.

64 The process of deciding whether, and if so which, sentences are to run consecutively is onethat is ultimately integrated within the overall sentencing process. I leave to one side the case ofmandatory or mandatory minimum sentences where the discretion of the sentencing judge isconstrained by statute. In such cases, the judge must work within the applicable constraints. But ingeneral, where the sentencing judge has discretion and is within the reach of s 307(1) of the CPC, hewill inevitably be aware when he imposes the individual sentences for each of the offences that hewill be obliged, at the final stage of the sentencing process, to order at least two of them to runconsecutively. It would be unrealistic to imagine that such a judge would disregard this fact and inparticular (a) what the aggregate sentence would be and (b) whether that aggregate sentence wouldbe appropriate in all the circumstances in terms of both its sufficiency as well as its proportionality,when he calibrates the individual sentences. In so doing, the sentencing judge would be doing nomore than ensuring that the overall punishment accords with the criminality that is before him. In myjudgment, to the extent this is so, it is best done transparently.

65 In this respect, my attention was drawn by the amicus curiae to the decision of the ManitobaCourt of Appeal in R v Wozny [2010] MJ No 384 for the principle that where the court concluded thatsome adjustment to the sentences was called for by the application of the totality principle, thisshould be done transparently. In that case, the judge first decided on the appropriate sentences foreach offence without having regard to the totality principle (Wozny at [94]) before applying theprinciple and then adjusting the individual sentences (Wozny at [97]).

66 In my judgment this is sound for the same reasons that I have suggested that a judge choosingto deviate from the one-transaction rule should articulate the reasons and considerations that prompthim to do so (see [46] above). But there is an additional point that applies with particular force here.By stating explicitly that the individual sentence that would otherwise have been imposed is beingrecalibrated by reason of the totality principle, the sentencing judge not only demonstrates principledadherence to the applicable sentencing benchmarks but also ensures that the integrity of thosebenchmarks for the discrete offences is not affected by the recalibration that he has done in theparticular case that is before him by reason of the particular facts and circumstances at hand.

67 I turn to the application of the totality principle where one of the offences in question carries amandatory minimum sentence. In appropriate cases, the aggregate sentence may be reduced byrecalibrating the non-mandatory sentence, but care should then be taken to ensure that themandatory minimum is not rendered nugatory. In R v Wasim Raza [2010] 1 Cr App R (S) 56 (“WasimRaza”), the English Court of Appeal (Criminal Division) had to consider the point where one of theoffences was subject to a mandatory minimum sentence.

68 The offender had been convicted of three offences: for possession of a firearm (for which hewas sentenced to the mandatory minimum sentence of five years); possession of ammunition (twoyears to run concurrently with the firearms offence); and possession of cocaine (eight years, to runconsecutively). A sentence of ten years was the norm for possession of cocaine in the amount thatthe offender had been charged with but the judge at first instance discounted this by two years to

give effect to the totality principle and accordingly sentenced the offender to 13 years’ imprisonmentin total. The offender’s appeal was dismissed.

69 The court discussed the importance of ensuring that the totality principle should not be appliedin such a way as to undermine Parliament’s intention in legislating a mandatory minimum sentence asfollows (at [17]):

…we agree with the submission … that in assessing the appropriate length of another custodialsentence for a different offence, one has to have regard in any adjustment for totality to thefact that Parliament has assessed the degree of culpability for possessing a prohibited firearm asrequiring a mandatory minimum sentence of five years’ imprisonment. In our judgment therefore ina situation in which that is one of the sentences which the court has to pass, the principle oftotality has to be applied in such a way that it does not undermine the will of Parliament bysubstantially reducing an otherwise appropriate consecutive sentence for another offence so asto render nugatory the effect of the mandatory minimum sentence for the firearms offence. …

On the particular facts presented, the court considered that the discount was appropriate and did notdilute or undermine the legislative intent in having a mandatory minimum sentence.

70 For completeness, I mention the practice in some other jurisdictions of giving effect to theinterest of proportionality by antedating the later of the consecutive sentences of imprisonment sothat it runs partly concurrently with the earlier sentence. This was done by the Supreme Court ofSouth Australia in The Queen v Smith and Shoesmith [1983] SASR 219. There the appellants, Smithand Shoesmith, had robbed two general stores at gunpoint; the robberies were committed three daysapart. At first instance, they were each sentenced to six years’ imprisonment for the first robbery andnine and eight years’ imprisonment respectively for the second robbery, both sentences to runconsecutively for a total of 15 and 14 years’ imprisonment respectively.

71 On appeal, Mitchell J held that while the individual sentences were appropriate, the aggregatewas excessive. Relying on the power of the court to order that sentences may take effect from adate other than the date on which they were pronounced, Mitchell J antedated the sentencesimposed in respect of the second robbery by two years so that the sentences would be concurrent inpart, thus reducing the aggregate sentences to 13 and 12 years’ respectively.

72 While we have a corresponding power under s 318 of the CPC to order that a sentence ofimprisonment is to take effect from a date other than that on which it is passed, this has hithertobeen invoked to backdate sentences for the purposes of giving an offender the benefit of time spentin remand. Undoubtedly, this provision would not entitle a sentencing court to effect any suchantedating of sentencing where the sentencing judge is mandated to run the imprisonment sentencesconsecutively pursuant to s 307(1) of the CPC. The totality principle cannot apply to negate theeffect of a rule of statute such as s 307(1).

73 It is a nuanced question as to whether s 318 could be invoked in other circumstances wheres 307(1) does not apply but where, as a matter of discretion, a sentencing judge wishes to imposeconsecutive sentences but also to temper the aggregate sentence by having them run in partialconcurrence. To answer this will require consideration of the interaction of s 318 with other provisionsof the CPC possibly including, for instance, s 322. I express no view on this here and leave it fordecision on another occasion when full arguments might be made on this.

74 In considering the totality principle, there are three other points that should be noted.

75 First, in keeping with the principle recognised in Wasim Raza, the sentencing court mustrecognise that it is generally within the purview of Parliament to decide what type or level ofsentence is appropriate for a given offence. The remit of the sentencing court is to determine thesentence to be imposed in each case having regard to the particular facts and circumstances thatarise. In this regard it is critical that the sentencing court should not act in a way that underminesthe legislative intent. For this reason, regard must be had to the legislative purpose underlying theenactment of s 307(1) of the CPC. This is the successor provision to s 18 of the Criminal ProcedureCode (Cap 68, 1985 Rev Ed) to which it is materially similar. When the latter section was enacted in1984, the Second Minister for Law explained that its purpose was to enhance the sentencing powergiven to the court when dealing with persistent or habitual offenders and to achieve this by ensuringthat those who commit multiple offences receive a longer sentence than those who commit a singleoffence.

76 The following extract from Singapore Parliamentary Debates, Official Report (26 July 1984) vol44 at cols 1897–1898 is instructive:

…clauses 2 and 3 of this Bill seek to further enhance the sentencing powers of the court indealing with persistent or habitual offenders so that they may be kept in custody for longerperiods.

…

…the purpose of the amendment [clause 3] … is to ensure that a person who has committedmultiple offences will receive a longer sentence than one who commits a single offence.

[emphasis added]

77 In my judgment, it follows from this, as was submitted by the amicus curiae, that the totalterm of imprisonment for the sentences that are ordered to run consecutively must exceed the termof imprisonment that is imposed for the highest individual sentence. Thus while it is within the powerof the court to select sentences other than the longest individual sentence to run consecutively, theaggregate of such sentences must exceed the longest individual sentence.

78 Second, in situations where the court is dealing with multiple sentences, the sentencing judgemust be vigilant to ensure that aggravating factors are not counted against the accused twice over.This was a point made well by V K Rajah JA in ADF, where he highlighted the important distinctionbetween sentence specific aggravating factors and cumulative aggravating features, at [92]:

Here, I should pause and highlight the sometimes overlooked distinction between sentencespecific aggravating factors and cumulative aggravating features. Where multiple distinctoffences have been committed, sentencing is a two-stage process. First, the sentence for eachindividual offence had to be determined. Second, the court has to determine whether thesentences for these multiple offences ought to run concurrently or consecutively and ifconsecutively, which combination of sentences ought to be made and whether the overallsentence properly comprehends the criminality of the multiple offender … If sentence specificaggravating factors are present, the sentence for each particular offence should be appropriatelyenhanced. Cumulative aggravating features, on the other hand, are features that ordinarily haveprimary relevance at the second stage of sentencing, particularly as regards to the issue ofwhether the global sentence should be enhanced by consecutive sentencing, when multipledistinct offences have been committed. As the possibility of an overlap may occur in some cases,care must be taken not to re-input an aggravating consideration at the second stage, if it has

already been fully factored into the sentencing equation during the first stage. [emphasis inoriginal]

79 I agree with this. In choosing which of the multiple sentences of imprisonment should runconsecutively and which concurrently, the sentencing judge should not take into account aggravatingfactors that were already taken into account at the first stage of sentencing and to decide that onaccount of those factors a combination of longer sentences is called for. In line with the generalrequirement of transparency where sentencing is concerned, the judge should be mindful to articulatewhich factors have been taken into account at which stage.

80 Finally, it is not inconsistent with the totality principle that there may well be circumstanceswhere a sentencing judge considers that the circumstances call for more than two sentences to runconsecutively. In ADF, Rajah JA made the following important observations on this (at [146]):

… There is no rigid linear relationship between the severity of the offending and the length of thecumulative sentence. In my view, an order for more than two sentences to run consecutivelyought to be given serious consideration in dealing with distinct offences when one or more of thefollowing circumstances are present, viz:

(a) dealing with persistent or habitual offenders (see [141] above);

(b) there is a pressing public interest concern in discouraging the type of criminal conductbeing punished (see [143]−[144] above);

(c) there are multiple victims; and

(d) other peculiar cumulative aggravating features are present (see [92] above).

In particular, where the overall criminality of the offender’s conduct cannot be encompassed intwo consecutive sentences, further consecutive sentences ought to be considered. I reiteratethat the above circumstances are non-exhaustive and should not be taken as rigid guidelines toconstrain or shackle a sentencing court’s powers ….. In the ultimate analysis, the court has toassess the totality of the aggregate sentence with the totality of the criminal behaviour.

[emphasis in original omitted]

An analytical framework

81 In my judgment these principles, all of which emerge from the case-law, may be organised andapplied within the following analytical framework after the sentencing judge has decided, at leastprovisionally, on the individual sentences for the offences that are before him:

(a) As a general rule, the sentencing judge should exclude any offences, which though distinctin the sense described above, nonetheless form part of a single transaction. This is a rule that isapplied in order to exclude sentences, at least provisionally, from being considered for selectionto run consecutively.

(b) The application of the one-transaction rule yields only a provisional exclusion. In certaincircumstances, it may be necessary for the sentencing judge to impose two consecutivesentences even if they relate to a single transaction. This may, for instance, be so for suchreasons as to give effect to a particular sentencing interest such as deterrence or to adequately

capture the enhanced culpability of the offender or simply in order to ensure compliance with s307(1) of the CPC. A sentencing judge who does this should articulate the reasons for it.

(c) If there are no grounds to depart from the one-transaction rule, the sentencing judgeshould then consider which of the available sentences should run consecutively.

(d) The sentencing judge should ensure that the cumulative sentence is longer than thelongest individual sentence.

(e) Beyond this, the consideration of which sentences should run consecutively is likely to bea multi-factorial consideration in which the court assesses what would be a proportionate andadequate aggregate sentence having regard to the totality of the criminal behaviour of theaccused person.

(f) This will include what was termed the “cumulative aggravating factors” in ADF. It isimportant that while the sentencing judge seeks to ensure that he has taken due regard of theoverall criminality of the accused, he does not, in the words of Rajah JA in ADF, “re-input anaggravating consideration at [this] stage, if it has already been fully factored into the sentencingequation during the first stage”.

(g) However, the sentencing judge must be careful not to have regard to any matters whichare not the subject of a conviction or which the accused has not consented to being taken intoconsideration.

(h) The sentencing judge should then apply the totality principle, which is a rule of limitationused to conduct a final check to assess whether the overall sentence yielded by the combinationof the consecutive sentences is excessive.

(i) If the sentencing judge considers that the cumulative total is excessive, he may either optfor a different combination of sentences or adjust the individual sentences though in doing so,the sentencing judge must be diligent in articulating his reasons.

(j) In exceptional cases, the sentencing judge may consider imposing more than twosentences consecutively. This may be appropriate in such circumstances as where the accused isshown to be a persistent or habitual offender, where there are extraordinary cumulativeaggravating factors, or where there is a particular public interest.

82 Of course a sentencing judge should strive to ensure that like cases are treated alike. But thisis not something that can be rigidly and mechanically applied: see Edwin s/o Suse Nathen v PublicProsecutor [2013] 4 SLR 1139 at [23] albeit in the slightly different context of an analysis ofsentencing precedents.

The principles applied to the present case

83 I have already said that in my judgment, there was no basis for appellate intervention inrelation to each of the individual sentences. The District Judge gave four reasons for selecting theparticular combination of sentences to run consecutively. I have set these out above at [17] and[18] above. Having reviewed the District Judge’s reasons for selecting the two heaviest sentences torun consecutively, I am satisfied that she did err.

84 In relation to the first reason she advanced, it is true that the appellant had in the past been

convicted of a number of less serious crimes and also had one conviction for consumption ofcannabinol derivatives. It is also true that he had spent a considerable period under drug supervisionor in a drug rehabilitation centre. But as I have noted above, he then had a nine-year drug free hiatusfrom 2001 to 2010 and this was a factor that ought to have been taken into account. The DistrictJudge however appeared not to have appreciated that there were quite distinct phases in theappellant’s history (see above at [12]). In the circumstances, it was simply incorrect to say that hehad speedily relapsed into drugs.

85 On appeal, the DPP argued that the appellant’s previous drug antecedents made it animperative that he should be “taken out of circulation” for a substantial period of time. The DPP reliedon the following speech of the Minister for Home Affairs in moving the Misuse of Drugs (Amendment)Act 1998 (Act 20 of 1998), which introduced a number of changes including statutory minimumsentences for repeat drug consumption (see Singapore Parliamentary Debates, Official Report (1 June1998) vol 69 at cols 42–44):

It is important that these hardcore drug addicts are not treated as victims. They are bad people.Firstly, to feed their expensive habit, many of them turn to crime. More than 73% of hardcoredrug addicts have some form of criminal record, while about 76% of all addicts with criminalrecords are hardcore addicts. So, they are criminals also. Secondly, these hardcore addictscontaminate the innocent and lead them to experiment with, and consume drugs, thusperpetuating a drug culture. Every addict, especially a hardcore addict, is a potential pusher andtrafficker. These hardcore addicts also inflict untold misery on their families and are a financialburden to their family members. They are bad role models, especially if they are fathers ormothers.

That is why the Act is amended to provide for long-term imprisonment and caning for hardcoreaddicts. This serves a number of objectives. Firstly, by putting these addicts out of circulationfor a long time, it will help to protect the public from them, especially as the majority of theseaddicts turn to crime to feed their habit. Secondly, it is also aimed at deterring drug addicts frompersisting in their drug addiction by making the consequences of continued addiction very severe.In the long run, the long-term imprisonment and caning should help to reduce the relapse rate ofdrug addicts and deter potential drug abusers from falling into the drug trap. Thirdly, it is topunish these recalcitrant addicts for persisting with their drug habit. Public reaction to myannouncement that we would enhance punishment for hardcore addicts, has been positive.

86 While one can fully appreciate the general sentiments expressed in this speech, this does notdisplace the need for the sentencing judge to consider if on the facts presented, these considerationsapplied with full force. In my judgment, they do not readily apply here. The appellant did haveprevious convictions, but the last conviction for drug consumption was in 2000. Although he did havea criminal record, he could not be said to be a hardened criminal. His present convictions were all drugrelated and there was no evidence that he had turned to other crimes to support his drug habit. Thefact that he had remained drug-free for nine years militated against the easy conclusion that he wasa “hardcore addict”.

87 Turning to the second reason advanced by the District Judge, in my judgment, it was incorrectto say the appellant had a pivotal role in importing drugs and making them available to abusers inSingapore. On the admitted facts the appellant was a courier bringing drugs into Singapore. However,it was not clear how his role came to be considered as pivotal. Moreover, it was because he wasbringing drugs into Singapore from elsewhere that he was charged for importation and sentenced to aterm of imprisonment of 12 years. It is inherent in the nature of the importation offence that theoffender makes the imported drug available for distribution in Singapore. That is why it rightly attracts

a substantial sentence. But this same fact cannot also be an aggravating factor to warrant furtherenhancing the overall sentence imposed on the offender by choosing to run longer sentencesconsecutively.

88 I turn to the third reason advanced, namely, that substantial quantities of drugs were involved.It is significant that this factor had already been taken into account by the District Judge indetermining the appropriate sentence at [17] of the GD:

In arriving at the appropriate sentence that would serve the purposes of punishment anddeterrence, I considered the nature and large quantities of drugs that the accused had andimported. The charges that the accused was convicted on and admitted to, showed that theaccused transported a substantial amount of methamphetamine and more than 5,000 tablets ofnimetazepam and a-methy-3-4-(methylenedioxy)phenethylamine. …

89 In re-inputting this consideration into the sentencing calculus when choosing the sentencesthat were to run consecutively, the District Judge had committed the precise error that Rajah JA hadcautioned against in ADF (see [78] above).

90 I turn finally to the District Judge’s last reason, namely, that only the methamphetamineimportation and consumption offences were distinct while the two possession charges wereconnected to the importation charge. In my judgment, this too was incorrect.

91 There was at least one other offence that was clearly a distinct offence, namely, DAC18138/2013. This was a charge for possession of 30 tablets containing nimetazepam which werefound in a briefcase beside the bed in the appellant’s residence when the CNB officers accompaniedhim there some hours after his arrest. Although the appellant admitted these were for his ownconsumption, nimetazepam is a different type of drug from those which formed the subject-matter ofthe three other charges that the Prosecution proceeded with. Moreover, the tablets containingnimetazepam were not found in the vehicle at the time the appellant was arrested. There is noindication at all as to why the District Judge did not consider this a possible sentence to runconsecutively with the sentence for DAC 47817/2012.

92 I am therefore satisfied that the District Judge had erred and this warranted my intervention.

93 In determining the appropriate sentence, the following considerations under the framework thatI have set out at [81] are relevant. First, the combined sentences had to exceed the longestindividual sentence which was 12 years. This would only be possible in this case if that sentence (forDAC 47817/2012) was one of the sentences that would run consecutively.

94 Second, as I have noted, there were at least two other sentences that could have beencombined with DAC 47817/2012. There was the sentence for the consumption charge (five years)which the District Judge selected and the separate charge for possession of nimetazepam (sixmonths). As I have said, the latter was clearly distinct: it was not committed at a proximate point intime or place; it involved a different drug altogether; and there was no evidence that these tabletshad been imported by the appellant.

95 DAC 18135/2013 was for possession of 9.46g of crystalline substance containing a mixture ofmethamphetamine and amphetamine for the appellant’s own consumption which was also found in theappellant’s car at the Woodlands Checkpoint, albeit located separately from the 139.3g of crystallinesubstance also containing a similar mixture of methamphetamine and amphetamine that was thesubject of the importation charge (DAC 47871/2012). There was thus proximity in both time and

place. Even though different interests were implicated in importation for distribution as compared topossession for consumption, applying the common sense approach in Ray Tan, I am satisfied thatincluding the sentence for this conviction would offend the one-transaction rule.

96 The question then is which of the two possible sentences should run consecutively with DAC47817/2012. The selection made by the District Judge resulted in an aggregate sentence ofimprisonment of 17 years. This seems excessive to me for the following reasons:

(a) prior to the present charges the appellant’s longest sentence in prison had been for aperiod of 15 months;

(b) aside from this he had spent a couple of other shorter stints in prison and some periods indrug rehabilitation centres;

(c) the last of this had been some 11 or so years prior to his conviction for the presentoffences;

(d) the fact that he had remained crime and drug free for a substantial period of nine yearsindicated that he was not quite in the mould of a hardened criminal and that he was capable ofreform; and

(e) the principal way in which his present round of criminal behaviour had become more seriouswas in the fact that he had resorted to importing drugs. This was not something he had done inthe past. Moreover, on his own admission he had gotten involved in a syndicate and had broughtsubstantial quantities of drugs into Singapore. While this was heinous, the dire consequence itdemanded was reflected in the heavy sentence of 12 years which the District Judge had imposedfor DAC 47817/2012.

97 In all the circumstances, I am satisfied that the aggregate sentence imposed by the DistrictJudge was disproportionate to the totality of the criminal behaviour that was before me. The mostserious offence of which the appellant had been convicted was that of importation. It appears fromthe Prosecution’s submissions below that the 12-year sentence that they sought before and obtainedfrom the District Judge for this was already at the high end of the range. The aggregate sentence of17 years was well in excess of this. It would therefore offend the first limb of the totality principle(see above at [54]).

98 Moreover, having regard to the appellant’s record in the way that I see it, the fact that thelongest previous sentence he had served was one of 15 months and his long crime-free period whichalso suggests that there are reasonable prospects for reform, I consider that the aggregate sentenceof 17 years would have been crushing and not in keeping with his past record or his future prospects.

99 As against this, I am satisfied that ordering the sentence for the possession of nimetazepam torun consecutively with the sentence for the importation which would result in an aggregate sentenceof imprisonment of 12 years and 6 months would be proportionate in the circumstances. As it ispossible to achieve a just sentence in this way, it is unnecessary for me to recalibrate the individualsentences.

Conclusion

100 For the foregoing reasons, I allow the appeal and order the sentences for DAC 47817/2012 (12years) and DAC 18138/2013 (six months) to run consecutively and those for the remaining two

charges to run concurrently, for an aggregate sentence of 12 years and six months’ imprisonment.

101 This case highlights the considerable importance of assessing in a principled way which amongmultiple sentences should be ordered to run consecutively and which concurrently. I urge theProsecution and defence counsel in future cases to consider this issue carefully and to ensure thatthe appropriate submissions are made so as to enable sentencing courts to arrive at principleddecisions that reflect appropriate and proportionate sentences.

102 Lastly, I wish to record my deep gratitude to the amicus curiae, Mr Rajaram Vikram Raja, andthe DPP, Mr Prem Raj Prabakaran. I was very greatly assisted in coming to this decision by the well-framed and carefully researched submissions and the authorities that were put forward by each ofthem. I was also assisted by the fair and measured way in which this was done.

Copyright © Government of Singapore.